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Homosexual laws

Decriminalizing same-sex behavior: Part 1
U.S. Supreme Court case: Lawrence v. Texas

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Topics covered in this essay:

The Supreme Court ruling & its implications are covered in a separate essay


Police in Texas found two gay men engaging in private sexual activity in the apartment of one of the men. They were arrested and charged with a misdemeanor for what the law calls "deviate sexual intercourse."  Texas is one of four contiguous states which criminalize certain sexual activities by same-sex couples which are legal when performed by a man and women. The other states are: Kansas, Missouri, and Oklahoma. The men were found guilty at trial. Their case worked its way to the U.S. Supreme Court, which accepted the task of ruling whether heterosexuals will continue to enjoy special sexual rights in these states which are denied homosexuals.

"Harvard Professor Laurence Tribe cryptically pointed out, the key question, he argues, should be 'not what were Lawrence and his partner doing in that bedroom, but what was Texas doing there?' " 12

On 2003-JUN-26, the U.S. Supreme Court found that the Texas law is unconstitutional.

Lawrence v. Texas: The initial trial:

In 1998, police in Texas responded to a false report, which may have been phoned in by a disgruntled neighbor. They entered the apartment of John Geddes Lawrence, and found him engaged in anal sex with another male: Tyron Garner. Both were arrested and jailed overnight. They are an inter-racial couple -- a factor that may have influenced the police to arrest them, but which has been studiously avoided by the media. They were tried under  Texas' Homosexual Conduct Law which defines anal or oral sex between two men or two women as deviate sexual intercourse. The same law permits this behavior if it is between a man and woman. They were found guilty and fined. These convictions for a "crime of moral turpitude" could prevent the two men from getting certain jobs in the state. In some jurisdictions, they would be required to register as sex offenders.

Their first appeal:

They successfully appealed their conviction before a panel of the Texas Court of Appeals on two federal constitutional grounds:

  • The 14th amendment to the U.S. Constitution guarantees equal protection to all persons.
  • The concept of personal privacy. The U.S. Supreme Court ruled in the Roe v. Wade abortion case that the wording of the Bill of Rights implied that the government must not interfere with certain activities by its citizens.

However, the full nine-judge court then voted to hear the case. The full court rejected the appeal by a vote of 7 to 2. The majority opinion stated that the Texas law "advances a legitimate state interest, namely, preserving public morals." The plaintiffs then appealed their case to the Texas Court of Criminal Appeals. After taking no action for a year, the court finally refused to review the case.

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Appeal to the U.S. Supreme Court:

The case was finally appealed to the U.S. Supreme Court. The "Petition for Writ of Certiorari" presents three questions:

  1. "Whether Petitioners' criminal convictions under the Texas Homosexual Conduct' law -- which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples -- violate the Fourteenth Amendment guarantee of equal protection of the laws?"

  2. "Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?"

  3. "Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?" 2

Bowers v. Hardwick had found that a Georgia sodomy law was constitutional.

The Supreme Court decided on 2002-DEC-2, that it would review the Lawrence v. Texas case as # 02-102. 1 The New York Times wrote: "In similar fashion...the court ordered Kansas to respond to an appeal filed by the American Civil Liberties Union in another gay rights case, Limon v. Kansas, No. 02-583. This case challenges the different treatment under Kansas law of oral sex between teenagers. When one member of the couple is aged 14 to 16 and the other is older, the act is statutory rape and the penalty is probation if the two are heterosexual. But the probation penalty does not apply to same-sex teenage couples. The defendant in this case, Matthew R. Limon, who was 18 when he had consensual oral sex with a 14-year-old boy, received a 17-year prison sentence." 5

On 2003-JAN-16, Lambda Legal, a gay-positive civil rights group, filed a brief with the U.S. Supreme Court asking them to overturn the Texas sodomy law. Ruth Harlow, the counsel of record and legal director at Lambda Legal said: "Some of the most diverse and respected voices in this country are lining up to tell the Supreme Court that these laws are contrary to American values. This is a tremendously important case for gay people and for everyone who believes in basic freedoms." 6

The gay-positive Lambda Legal Defense and Education Fund is handling the appeal, with the support of: the Log Cabin Republicans, Republican Unity Coalition, the Cato Institute, Institute for Justice, American Bar Association, National Lesbian and Gay Law Association, American Civil Liberties Union and the National Organization for Women Legal Defense and Education Fund. 10

Supporting the state of Texas are many conservative Christian organizations and a few conservative political groups:  the American Center for Law and Justice, American Family Association, the attorneys general of the states of Alabama, South Carolina and Utah, Center for Arizona Policy, Center for Law and Justice International, Center for the Original Intent of the Constitution, Concerned Women for America, Family Research Council, Focus on the Family, Texas legislators, Liberty Counsel, Pro Family Law Center, Texas Eagle Forum; Daughters of Liberty Republican Women of Houston, Texas; Spirit of Freedom Republican Women's Club, Texas Physicians Resource Council, Christian Medical and Dental Association, Catholic Medical Association, and United Families International. 10

Some reactions to the U.S. Supreme Court's decision to hear the case:

  • On DEC-3, Texas Governor Rick Perry commented, in broken English, that "I think our law is appropriate that we have on the books." 3

  • Kevin Layton, spokesperson for the Human Rights Campaign, a gay rights group, said: "We applaud the Supreme Court©s decision and we hope this is the beginning of the end to an unfortunate chapter of singling out gay and lesbian people for state-sanctioned persecution." 4

  • Attorneys for the Pro Family Law Center, a part of the fundamentalist Christian Abiding Truth Ministries, filed an amicus curia (friend-of-the-court) brief which urged the court to not hear the appeal. They wrote, in part: "Petitioners are attempting to force this country to condone homosexual relationships and to create a universal right, based on those relationships, which has never been recognized in the Constitutional history of the United States." That statement seems to conflict with the decisions of ten state courts, which declared similar legislation to be unconstitutional in their state between 1980 and 2002. 4

  • In its successful appeal petition, the Lambda Legal Defense and Education Fund wrote that: "This discriminatory criminalization tears at gay relationships and stigmatizes loving behavior that others can engage in without the brand of 'lawbreaker.'...The law sends a powerful signal from the State condemning homosexuals. Not surprisingly, then, it is also used to justify discrimination against gay men and lesbians in parenting, employment, access to civil rights laws, and many other aspects of everyday life." 4

  • District Attorney Charles A. Rosenthal, representing Harris County, TX argued in a brief to the court that morality " a fluid concept, and public opinion regarding moral issues may change over time, but what has not changed is the understanding that government may require adherence to certain widely accepted moral standards and sanction deviation from those standards, so long as it does not interfere with constitutionally protected liberties." 4

Arguments heard before the U.S. Supreme Court:

The court heard arguments on 2003-MAR-26.

The plaintiffs argued that the state law is unconstitutional for two reasons:

  • It violates their right to privacy by interfering in their sexual lives.

  • Because the law criminalizes homosexual anal sex but permits heterosexual anal sex, it violates their right to equal protection under the law.

The state of Texas argued that the law is constitutional because it: "furthers the state©s longstanding moral disapproval of homosexual conduct and the deterrence of such immoral sexual activity."

The Episcopal Church filed an amici brief in opposition to the Texas law. According to Concerned Women for America, many gay-positive reform groups within a number of Christian denominations had filed similar briefs. However, the Episcopal Church was "essentially alone" in filing a brief on behalf of their entire denomination.

On 2003-MAR-31, Family News in Focus, a news arm of the Fundamentalist Christian social action group Focus on the Family, commented: "By most accounts, Harris County (Texas) District Attorney Charles Rosenthal, Jr. had a bad day last Wednesday [2003-MAR-26], when he argued in support of the Texas law. Conservative attorneys say Rosenthal didn't make any of the arguments he needed to make to support the law, and the court acted strangely, as well." 11

Some reactions by spokespersons for Fundamentalist Christian groups were:

  • Jan LaRue, of Concerned Women for America is worried that  decriminalization of same-sex behavior will lead to equal marriage rights for gays and lesbians. She said: "I'm encouraging people to pray. It's said that you can't win a case on oral argument, but you can lose one there. If it violates equal protection to prohibit same-sex sodomy, the next case will argue that it violates equal protection to prohibit same-sex marriage."

  • Alan Sears, of the Alliance Defense Fund, a pro-family legal foundation, was distressed at the arguments that Rosenthal did not make, and by the court's questioning. He said: "It was as if we were in a fantasy world and nothing that happens in the real world was to be discussed in the courtroom. "The briefs in this case are very thorough. They cover the public health aspect. They cover the impact on marriage."

  • Stuart Shepard, correspondent for Family News in Focus wrote: "In the worst-case scenario, the Supreme Court might create a constitutional right to homosexual activity. Many pro-family experts seem to think the court would stop short of that, but may likely overturn the Texas law against sodomy."

Concerns by various groups, in advance of the court ruling:

Some conservative Christian individuals and groups believe that the stakes are very high in this case:"
  • Kelly Shackleford is a Texas attorney, and director of the Free Market Foundation, which is affiliated with the Fundamentalist Christian group Focus on the Family. He is also director of the Liberty Legal Institute. Shackleford  "argued in support of state workers who removed a child from her mother's custody because she was involved in a lesbian relationship. Shackleford argued that the state should 'not knowingly place children in homes where they know there is ongoing criminal sexual activity.' Shackleford reasoned that the state's sodomy law means that the state can't 'place children in homosexual households'." 8

    He wrote an amicus curia (friend of the court) brief on behalf of about 70 Texas state lawmakers. 9 He said that a win by Lawrence would be a "huge trump card" for homosexual equality --an "atomic bomb that they could carry around to attack any law that does not treat homosexuality on an equal basis with heterosexuality." Shackleford said that if the U.S. Supreme Court rules that gays and lesbians can legally engage in sexual behavior, then the right would have "massive implications," jeopardizing, if not overturning, thousands of laws that have a definition of marriage embedded in them, from tax laws to custody laws. 10 "If you don't have a law that says a man and woman can do something and a man and man can't, then every marriage law is unconstitutional."

  • Jordan Lorence is from the Alliance Defense Fund, which also filed a brief in favor of the existing law. He said that there is a "good likelihood" that if the Texas law were declared unconstitutional, that marriage laws would eventually be declared unconstitutional. He said: "I think that the true objective of the Lawrence v. Texas case is [to combat] laws that act as legal obstacles to homosexuals right now, such as the Defense of Marriage Act, 'Don't ask, don't tell' and laws that prevent [their] adoption of children." 10

  • Michael Adams, spokesperson for the gay-positive Lambda Legal Defense Fund, denies the wider implications of this case. He said: "We don't think in those terms...For us, the case asks a germane, basic question, which is whether the government has the right to invade the privacy of any citizen in this country." He sees same-sex marriage and similar causes as not directly connected to this case. However, he said that "it would certainly be a major breakthrough for the court to rule that states should not be in the business of making people criminals because of whom they chose to love.... Nonetheless, winning this case will not open the door for same-sex marriage. I think that that's an exaggeration and overstatement. There are 13 states that still have sodomy laws, but no state that allows gay and lesbians to marry." 10

  • Ruth Harlow of Lambda is the lead attorney in the case. She said: "This is a tremendously important case for gay people and for everyone who believes in basic freedoms. These laws are an affront to equality, invade the most private sphere of adult life and harm gay people in many ways....These laws are widely used to justify discrimination against gay people in everyday life. They're invoked in denying employment to gay people, in refusing custody or visitation for gay parents, and even in intimidating gay people out of exercising their free-speech rights." 10

  • Senator Rick Santorum (R-PA) stated in an interview that if the Supreme Court finds that all people -- heterosexual, homosexual and bisexual -- have a right to consensual sex within their homes that everyone will then have the right to commit bigamy, polygamy (presumably either polygyny or polyandry), incest, adultery, and any other sexual activity. More details on this comment and the many reactions to it.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Linda Greenhouse, "Justices to Reconsider Ruling Against Sex Between Gays," New York Times, 2002-DEC-3, at:
  2. The text of John Geddes Lawrence and Tyron Garner v. State of Texas is online at FindLaw: See: You need software to read these files. It can be obtained free from:
  3. "Perry Calls Sodomy Law 'Appropriate'," Associated Press, 2002-DEC-4.
  4. Charles Lane, "Court to Hear Texas Case on Gay Rights: Challenge to State's Sodomy Statute Could Lead to Landmark Ruling," Washington Post, 2002-DEC-3, Page A12. Online at:
  5. Linda Greenhouse, "Justices to Reconsider Ruling Against Sex Between Gays," New York Times, 2002-DEC-3, at:
  6. "Supreme Court urged to kill Texas' sodomy law," Associated Press, 2003-JAN-16, at:
  7. Charles Lane, "Court to Hear Texas Case on Gay Rights: Challenge to State's Sodomy Statute Could Lead to Landmark Ruling," Washington Post, 2002-DEC-3, Page A12. Online at: You need software to read these files. It can be obtained free from:
  8. "Profiles of the Religious Right: Texas-based organizations," at:
  9. The text of Shackelford's "Brief of Amici Curiae" is at: You need software to read these files. It can be obtained free from:
  10. Art Moore, "High court to give 'gays' their own 'Roe'? Case could establish constitutional right to 'homosexual conduct'," 2003-FEB-25, WorldNetDaily, at:
  11. Stuart Shepard, "Attorneys Upset About Sodomy Case," Family News in Focus, 2003-MAR-31, at:
  12. John W. Whitehead, "Gay rights and wrongs," Razormouth©, 2003-MAY-13, at:

Texts of court documents related to Lawrence v. Texas:

Copyright © 2002 & 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2002-DEC-13
Latest update: 2013-JUN-28
Author: B.A. Robinson

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